Waiver: First District Affirms Order Denying Petition To Compel Arbitration – Appellant, Who Took 25 Depositions, Waived Right To Arbitrate

“Less-Than-Candid ‘Chronology of Pertinent Events Underlying Appeal’” Chafes Court.

     In Oregel v. PacPizza (1/2 June 1, 2015) (Richman, Kline, Stewart) (published), the Court of Appeal had no trouble affirming the superior court’s order denying Appellant PacPizza’s petition to compel arbitration.  More than enough evidence of a high level of litigation activity inconsistent with arbitration supported the finding of waiver of the right to arbitrate: filing two answers without mentioning arbitration, paying jury fees and asking for a jury trial, attending two CMCs without mentioning arbitration, and considerable discovery – including taking 25 depositions.

     Appellant’s omission of extensive discovery from its chronology of pertinent events particularly vexed the Court.  Justice Richman remarked the omission “is nothing short of brazen given the trial court’s finding that Oregel was prejudiced by the discovery the parties conducted . . . . “  The lesson here is to strive for candor in describing the record to the Court of Appeal.  We’re stuck with the facts.